MDL NO. 1407
February 7, 2003
This document relates to all actions
ORDER RE: PLAINTIFFS' MOTION TO COMPEL RESPONSES TO DISCOVERY REQUESTS FROM SCHERING-PLOUGH
Plaintiffs filed a motion to compel responses to plaintiffs' master first set of interrogatories and requests for production of documents ("discovery requests") from defendants Schering-Plough Corporation, Schering-Plough Healthcare Products, Inc., and/or their related companies ("Schering-Plough"). Having reviewed the papers filed in support of and in opposition to this motion, the court rules as follows:
Two aspects of Schering-Plough's responses and objections to plaintiffs' discovery requests prompted plaintiffs' motion to compel. First, Schering-Plough informed plaintiffs that a March 1997 fire at its Iron Mountain storage facility resulted in the destruction of many Schering-Plough documents, some of which, Schering-Plough admits, may have been relevant to this litigation. Second, Schering-Plough objected to the request for production of documents and information in the possession of their international subsidiaries. See Affidavit of Donald Cravins, Jr., Ex. 3 at 3 ("Defendants object to plaintiffs' Requests to the extent they seek information or materials from or concerning PPA products sold outside the United States. [However,] defendants will produce relevant documents originating with or pertaining to PPA products sold outside of the United States which are physically located in its United States facilities.")
Schering-Plough did produce a number of documents on a rolling basis, including some documents related to their international subsidiaries to the extent those documents were physically located in the United States. Schering-Plough also provided plaintiffs with a 925 page list of documents destroyed in the Iron Mountain fire. Despite repeated attempts, the parties were unable to resolve the question of whether Schering-Plough must produce documents in the possession of its international subsidiaries.
The parties disagree on the extent to which other defendants in this multi-district litigation have produced these types of documents. However, neither party provides any specific details on this issue.
III. DISCUSSIONSchering-Plough argues that plaintiffs fail to establish the relevance of the documents sought, given that plaintiffs' claims do not stern from PPA-containing products sold by Schering-Plough's international subsidiaries and because none of those subsidiaries are named as defendants. They also object to the requests as overly broad, unreasonably cumulative and duplicative, and unduly burdensome. Schering-Plough points to documents already produced and responsive to these requests, including some related to international subsidiaries, and describes the complexity and expense of collecting, translating, and producing documents from over fifty different countries worldwide.
Plaintiffs assert the relevance of the requests, in that they seek documents relating to the safety and regulation of PPA. They argue that the requested documents, in the possession of Schering-Plough's wholly-owned subsidiaries, are in Schering-Plough's control and appropriate for production. Plaintiffs note that Schering-Plough, in pointing to international subsidiary-related documents already produced, appears to concede the relevance of these documents, but only so long as the documents are located within the United States. They describe Schering-Plough's objections as consisting of mere boilerplate language, noting the failure to itemize or specify expenses and asserting that mere trouble and expense is not alone sufficient grounds for objection.
Federal Rule of Civil Procedure 26(b) allows discovery broad in scope, including that "regarding any matter, not privileged, that is relevant to the claim or defense of any party[.]" Fed.R.Civ.P. 26(b)(1) "Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence."Id. Limitations on discovery may result where, inter alia, "the discovery sought. is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burden-some, or less expensive," or where "the burden or expense of the proposed discovery outweighs its likely benefit[.]" Fed.R.Civ.P. 26(b)(2)
Pursuant to Rule 34, a party may request the production of documents which are "in the possession, custody or control of the party upon whom the request is served[.]" Fed.R.Civ.P. 34(a)(1) "A Corporation must produce documents possessed by a subsidiary that a parent corporation owns or wholly controls." United States v. International Union of Petroleum Indus. Workers, AFL-CIO, 870 F.2d 1450, 1452 (9th Cir. 1989) See also Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D. Cal. 1995) ("A party may be ordered to produce a document in the possession of a non-party entity if that party has a legal right to obtain the document or has control over the entity who is in possession of the document.") Schering-Plough did not dispute plaintiffs' contention that the documents located abroad remain within the company's control.
The court finds that the circumstances warrant granting plaintiffs' motion to compel. Plaintiffs seek documents relating to the safety and regulation of PPA — issues relevant and, in fact, central to the PPA litigation. The mere fact that documents are located abroad does not dictate whether or not the documents are relevant. Indeed, to limit production to documents within the United States would unreasonably allow a multi-national corporation to evade document requests by simply storing their documents abroad. See, e.g., Cooper Indus., v. British Aerospace, Inc., 102 F.R.D. 918, 920 (S.D.N.Y. 1984) ("[D]efendant cannot be allowed to shield crucial documents from discovery by parties with whom it has dealt in the United States merely by storing them with its affiliate abroad. . . . If defendant could so easily evade discovery, every United States company would have a foreign affiliate for storing sensitive documents.") Moreover, given that Schering-Plough concedes relevant documents may have been destroyed in the Iron Mountain fire, the international subsidiaries may be the only sources from whom those documents may be obtained.
However, the court also recognizes the difficulty and expense of conducting document collection and production on an international basis. In order to streamline this process and reduce the burden on Schering-Plough. the court orders the parties to abide by the following guidelines. First, plaintiffs should utilize the list of documents destroyed in the Iron Mountain fire to identify documents potentially relevant to this litigation. Second, the parties should confer in order to determine the precise document requests forming the basis for defendants' document collection efforts abroad. Any requests not touching upon the safety and regulation of PPA should be excluded from the search, as should any requests which would result in merely duplicative or cumulative document production. Also, if possible, the parties should attempt to limit the scope of the search to locations in which it would be reasonable to conclude that relevant documents may be found. Finally, in an effort to reduce costs, plaintiffs should be afforded an opportunity to inspect potentially responsive documents prior to production.
For the reasons stated above, the court hereby GRANTS plaintiffs' motion to compel. The parties shall abide by the court's direction in conducting the document production addressed within this order. However, the court does not find that the circumstances warrant granting plaintiffs' request for expenses incurred with respect to their motion to compel, nor Schering-Plough's request for expenses incurred in collecting and producing the documents at issue. As such, both parties' requests for expenses are hereby DENTED.